Is an extremist myth keeping U.S. policymakers from agreeing on reasonable gun safety measures that could help to reduce the seemingly endless bloodletting in America?
That was the proposition laid out by U.S. Rep. Jamie Raskin during a standing room-only presentation last week in Ely.
Raskin, who taught constitutional law for 25 years prior to his election to Congress, was challenging what’s known as the “insurrectionist theory” of the Second Amendment, a view which Raskin describes as National Rifle Association “dogma.” According to Raskin, it’s a view that has consistently undermined efforts to protect the public from high-powered weaponry in the hands of extremists or the mentally ill, despite the overwhelming public support for common sense laws such as mandatory background checks and red flag provisions.
The insurrectionist theory has been repeatedly rejected by U.S. courts, including by the U.S. Supreme Court, as well as in common law. And, as Raskin notes, it also conflicts directly with other provisions within the Constitution, which describe the very insurrection that the theory’s supporters envision as “treason.”
The language of the Second Amendment itself, which couches the right to bear arms within the constraints of a “well-regulated militia” which “is necessary to the security of a free State,” also conflicts with the insurrectionist view.
For most of the nation’s history, the Supreme Court has held that the rights conferred by the Second Amendment were within the confines of a militia, and that it did not confer an individual right to gun ownership. That changed in 2008, when a conservative-dominated Supreme Court found for the first time in District of Columbia v. Heller that the amendment did include an individual right to gun ownership for lawful purposes, such as self-protection within one’s home.
The right to own a firearm to protect oneself or one’s property, or to hunt is a right with a longstanding tradition, going back centuries in English common law and in the English Bill of Rights. While the English and American legal traditions have also envisioned that the citizens might, at times, use their firearms as part of a broader defense, it has always been seen as the organized defense of the state or their community against outside forces, not the overthrow of the state itself.
Indeed, the U.S. Constitution provides the clearly delineated and lawful means for overthrowing the government, and it’s through the ballot box. If someone disagrees with the results of an election, as happened most notably when then-President Donald Trump lost to Joe Biden in 2020, they have the right to challenge the results through the courts and other processes and procedures outlined in the Constitution and the Electoral Count Act, a law which was passed by Congress and signed by the President as prescribed by the Constitution. Beyond those legal challenges, a losing candidate has the right, or perhaps more accurately— the obligation— to accept the results, like it or not. Just ask Al Gore.
Inciting a riot or attempting to commit fraud by putting forward false electors is illegal under any theory of the Constitution. Indeed, the actions surrounding Jan. 6, 2021, provide the perfect example of the flaws in the insurrectionist theory of the Second Amendment. Under the Constitution, ousting a sitting president in an election is not evidence of a tyrannical government— it’s how our system was designed to work. Under the insurrectionist theory, however, if enough people (as few as three percent of the population according to some in that movement) can be incited to act, they could overthrow our elected leaders and install some other type of government more to their liking (we shudder to imagine), thereby denying the other 97 percent of us the right to self-government under the Constitution. And the NRA believes this notion is the basis of the Second Amendment? It’s utter nonsense.
Even the Supreme Court in Heller noted: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Once the right to bear arms is understood in its proper historical context, adds Raskin, it is clear that reasonable restrictions are perfectly consistent with the Constitution. Those who argue otherwise are taking an extremist position that is not supported by the facts, by history, or even by the most ideologically pro-gun Supreme Court in U.S. history.
Given that overwhelming majorities of Americans, including Democrats, Republicans, and Independents, support reasonable gun regulation, members of Congress and state Legislatures should stop using false Constitutional claims to block such legislation. Fiction should not be the basis for undermining public safety.
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